THE NATIONAL LAWYERS’ CAMPAIGN FOR
JUDICIAL TRANSPARENCY AND REFORMS
304, Hari Chambers, 3rd Floor, 54/68 SBS Marg, Near Lion
Gate, Fort Mumbai- 400 023
#47,GL Sanghi Chambers Block, Supreme Court Campus, New Delhi-110 001
Cell # +91 98205 35428 , #+91 9769110823, Off:01123381068
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Mathews J. Nedumpara
President
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A. C. Philip
Vice
President,
Delhi
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Ms. Sophia Pinto Vice President
Bangalore
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Mrs. Rohini M. Amin
Vice President
Mumbai
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Jacob Samuel
Vice president,
Cochin
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Navaneetha Krishnan T.
General Secretary
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AN
OPEN LETTER
3rd November, 2015
To
1. Hon'ble Shri Narendra Modi,
Prime
Minister of India, New Delhi.
2. Hon'ble
Shri Arun Jaitley,
Finance Minister,
Government of India, New Delhi.
3. Hon'ble Shri V. Sadananda Gowda,
Law
Minister, New Delhi.
4. Hon'ble Shri Mallikarjun Kharge,
Leader
of the Opposition,
44, Parliament House,
New Delhi 110 001.
Hon'ble
Sirs,
Sub: Replacement of learned Attorney General Shri Mukul Rohatgi for his total failure to defend the Constitution
(Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014, nay, abdication of the duty owed to the Government, nay,
the 125 crores of people of the country.
1. The instant is a letter which we
wished never to pen, though ever since the hearing of the NJAC case it appears
to be an inevitable one. It is a matter
of great agony and pain to address a letter as the instant one for us, devotees
of Gandhian principle of non-violence, not merely in deeds but in words –
spoken and written, but where there is a duty to speak, silence is a crime.
2. We
write this letter with enormous amount of mental strain, for, we do not intend
to attack or cause pain to anyone. The
grievance we make, a sharp one, for, the duty we call our conscience, for, in
the larger public interest if one were to cause some private injury, between
the two the former ought to be opted.
3. We,
the campaigners, ordinary lawyers, have long been demanding, though our cries
fell in the wilderness, for greater diversity in the appointment of Judges to
the higher judiciary, which could be possible where vacancies are notified,
applications/references are invited and an open and transparent selection is
conducted. The system of Judges appointing
themselves prevalent since 1993 has meant, with great pain we have to point
out, monopolizing the august office of Judges of the higher judiciary by the kith and
kin of sitting and former Judges of the Supreme Court and High Courts,
celebrated lawyers, Chief Ministers, Governors et al and a few first generation
lawyers who are all politically connected or are close to big industrial houses. Certain families have monopolized the higher
judiciary with even five members from one family, with sons and nephews in the
same High Court, and some former Judges securing elevation of all his
juniors. Judicial appointments conducted
in an opaque and cabal manner meant it being the monopoly of the kith and kin
of those mentioned above. It meant the
concept of diversity being completely jeopardized; it meant inbreeding. Even in the animal and plant kingdoms nature
abhors inbreeding. Diversity of DNA is
the sole guarantee against extinction.
It is the diversity of DNA which offers strength to animals and plants
to defend from viral and bacterial attacks.
There are certain plant varieties where inbreeding is prevalent, but
many such varieties are extinct.
4. We, campaigners, even in our wildest
of dreams do not intend to cause any aspersions on the competence or
eligibility of any of the Judges of the Supreme Court or High Courts who are
kith and kin of Judges and others. They
are men of impeccable integrity, sterling character, great erudition,
intellect, patience and wisdom. We
literally worship them. At the same
time, in all humility, we maintain that had the judicial appointments been made
in an open and transparent manner, there would have been far greater diversity
and the Supreme Court would have many Krishna Iyers. Today we have the very best Judges, but had
there been an open system which allowed diversity, we would have attained still
higher degree of excellence when it comes to the quality, competence,
philosophy, wisdom, knowledge and erudition.
India today is not what it was in the late 1940s when the Constituent
Assembly debated appointment of Judges; India today is not what it was in 1993
when the Judges-2 case was decided; India today in 2015 is very different. We live in the electronic era. Ninety nine per cent of the population of the
country feels devastated by the NJAC judgment.
Except S/Shri Fali S. Nariman, Rajeev Dhawan, Anil Diwan, a few lawyers
in the corridors of the Supreme Court and a few other disgruntled men opposed
to the Modi Government, who mistakenly think that the NJAC is the Modi
Government’s brainchild, the rest of the country hail the NJAC.
5. The judgment of the Supreme
Court in the NJAC case running into more than 1000 pages means that what
legislative or administrative policy the country should adopt could not be
decided by the 125 crores people of this country through their elected
representatives, but by four Hon'ble Judges of the Supreme Court because
legendary Fali Nariman and company have persuaded them to think that the people
of this country are not mature enough to decide what is good for them, that
Judges alone could decide what is in the best interest of the people and that
the wisdom of the Judges prevails over the wisdom of the people. The judgment in the NJAC case is a monologue,
a narration of one side of a coin. The
consequences are frightening; in the name of a concept called “basic
structure”, which has been reduced to nothing but to be a structure made of wax
which can take shape in whatever form the Judges like to mould it by their
interpretative exercise, a manifestly absurd proposition that the people of
this country cannot enact a law providing for a mechanism for appointment of
Judges to the higher judiciary with participation of the civil society has been
propounded. Look at the absurdity in
another case where the Supreme Court held that establishment of the National
Tax Tribunal will violate the basic structure. Now, to bring some minor changes to set up
a Tax Tribunal to bring in existence a Judicial Commission, nothing short of a
revolution is an option.
6. The judgment in the NJAC case, on the face of it,
is absurd, we must say with utmost respect, nay, great pain and agony. The
Judges cannot be blamed entirely; the blame primarily lies with the Attorney
General. The campaigners had in the open
Court, so too by repeatedly writing to the Attorney General, the Hon'ble Prime
Minister, the Hon'ble Law Minister et al, requested that the following
fundamental issues be raised, nay, the very non-maintainability of the Writ
Petition be raised. Had the following
issues been raised, the Supreme Court would have passed a different judgment,
one upholding the NJAC. The issues are:
a) Constitution (Ninety-ninth
Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014
are non-justiciable; the said Acts being matters of executive and legislative
policy. The said Acts, even in the
wildest of imagination, cannot be said to violate the fundamental or legal
rights of any citizen, not even an Association, for, no legal or fundamental
rights are violated and no petition under Article 32 of the Constitution could
be maintained. Where there is a legal
injury, there is a remedy, and where there is no legal injury at all, nobody
could seek any legal remedy.
b) The nonsense petition, a so-called PIL, at
the hands of the Supreme Court Advocates on Record Association (SCAORA) is no
PIL at all, for, a PIL to be maintained there should be a “person aggrieved” or
a group of persons and they out of their poverty, ignorance, illiteracy and
similar disadvantages are unable to institute a petition on their own. SCAORA is not an Association with such
incapacities to institute a petition by itself.
Therefore, the PIL filed by them is not at all a PIL, but a Writ
Petition, which could have been maintained if it could claim that any of its
fundamental rights is violated, but it had not pleaded so.
c) Who is the real person aggrieved? SCAORA has named none. Assuming it to be the 125 crores people of
India, including us, the campaigners, who authorized it to file a PIL? Unquestionably, none.
d) The judgments in Judges-2 and Judges-3
cases were void; it meant rewriting of the Constitution; the said judgments
were rendered per incuriam. Only the
Parliament in its constituent power could do so and not the Supreme Court in
exercise of its power of construction or interpretation. If a judgment on its very face is contrary to
the Constitution, it is the Constitution which will prevail and not an
erroneous judgment, like the judgments in Judges-2 and Judges-3 cases, which
are required to be declared as one rendered per incuriam.
e) Under Article 141 of the Constitution, the
Supreme Court does not lay down the law of the land. The concept that the Supreme Court lays down
the law of the land is a misconception, though deep rooted. A judgment of the Supreme Court is only a
stare decisis or a precedent; it is binding only between the parties to the lis
and for the rest of the world it is a precedent, not law of the land stricto
sensu, and only the Parliament can declare the law of the land.
7. As could seen from the
above, the people of the country lost the NJAC case, for, the case was after
all SCAORA v. “We, the people”, because the learned Attorney General and his
team failed to raise even the preliminary objection as to the maintainability
of the PIL by SCAORA. Had they raised
the said plea and lost, then it would have been a different thing. The learned Attorney General and his team,
instead, conceded the maintainability of the petition. The very same mistake Mr. Parasaran did in
Judges-2 case where he did not at all question the maintainability of the PIL
at the hands of SCAORA.
8. What is
the way ahead? The Hon'ble Judges have
posted the case on 3rd November, 2015 for further hearing to find
out ways and means to improve the collegium system. But that is no remedy; it is an exercise in
futility, if we were to quote Horace: “parturient montes, nascetur ridiculus
mus” – mountains
will be in labour, and an absurd mouse will be born (all that work and nothing
to show for it). The Judges are
honourable men and certainly they would be too willing to introspect and accept
that they have erred, if they are convinced.
If the learned Attorney General could do that, the nation will be
indebted to him. But the question is
whether his ego will permit him to graciously accept his Himalayan blunder in
failing to raise the preliminary issue in spite of our having begged with him
to raise it. The Government should file
a review petition. The Hon'ble Judges
too will take notice of the fact that the euphoria of 16th October,
2015 when the sycophants hailed the NJAC judgment has vanished; as days pass
by, there is greater and greater criticism of the judgment. Ordinary people, law students, ordinary
lawyers, Judges – sitting and retired – and the informed public at large have
come forward to ventilate their anger, frustration and disillusion of a much
needed reform in the realm of transparency and accountability being allowed to
be reduced to a dust. These campaigners,
ordinary people, raise their concern in anguish in the total reluctance of the
higher judiciary to accept the aspirations of Young India of the electronic era
for a transparent judiciary. They feel
that Judges are against everything in the realm of transparency and
accountability, be it video-recording of Court proceedings, be it declaration
of assets by them, be it right to information.
We part with the words:
“Our beloved Prime Minister,
Hon'ble Shri Narendra Modiji, we, the people of India, the common men, who have
elected you to power, demand greater transparency in higher judiciary,
video-recording of Court proceedings, declaration of assets by Judges, right to
information and open and transparent selection of Judges to the higher
judiciary.”
We mean no
confrontation with the Judges. The Government should try to achieve its goal in
such a way as not to give any impression that it is on a confrontation with the
judiciary. We, campaigners, are no
confrontationists; we respect the judiciary; we stand by the judiciary; we
believe the judiciary is the guardian and protector of the lives and liberties
of the citizens; we salute the judiciary for the yeoman services it did for the
country over the last 55 years. There
were some wrong decisions like the instant one, but they are all exceptions.
9. Institute a review petition
in the Supreme Court against the NJAC judgment; salvage the NJAC even if it
means replacing the learned Attorney General whose failure to even raise the
preliminary issues of non-justiciability and non-maintainability of the PIL, is
primarily responsible for the NJAC case being lost.
With
respectful regards,
Yours sincerely,
(Mathews J. Nedumpara)
President
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